United States District Court, E.D. Michigan, Northern Division
ROBERT L. SAMP, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER ADOPTING IN PART AND REJECTING IN
PART REPORT AND RECOMMENDATION, DENYING PETITIONER'S
MOTION, DENYING A CERTIFICATE OF APPEALABILITY AND DENYING
PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL
L. LUDINGTON, United States District Judge.
April 14, 2016, Petitioner Robert L. Samp was indicted on one
count of willfully failing to prepare and file an income tax
return (calendar year 2009 with taxable income of
approximately $53, 595) and two counts of willfully evading
taxes (calendar year 2010 with taxable income of
approximately $278, 069; calendar year 2011 with taxable
income of approximately $198, 155). ECF No. 1. On August 10,
2016, the Government issued a superseding indictment which
charged Samp with the additional offense of possessing a
firearm while being an unlawful user of a controlled
substance, in violation of 18 U.S.C. §922(g)(3). ECF No.
20. On February 22, 2017, a second superseding indictment was
issued that adjusted Samp's alleged total tax liability
($236, 569 for calendar year 2010 and $202, 102 for calendar
year 2011). ECF No. 47.
trial, Samp pleaded guilty to Count One, willful failure to
file taxes for tax year 2009. ECF No. 80. On April 28, 2017,
Samp was acquitted by a jury of the remaining three counts.
ECF No. 63.
October 26, 2017, Samp was sentenced to 12 months
incarceration and 12 months of supervised release. ECF No.
79. He was required to pay $178, 112 in restitution.
Id. Samp has completed his term of incarceration,
but is still on supervised release. He has filed a motion to
vacate his sentence under 28 U.S.C. §2255. ECF No. 82.
Magistrate Judge Morris recommended that Samp's motion be
granted in part and denied in part. For the following
reasons, Judge Morris's recommendation will be adopted in
part and rejected in part.
March 30, 2017, Samp pleaded guilty to one count of willful
failure to file his income tax return for tax year 2009. ECF
No. 80. After the jury's verdict, a presentence report
was prepared and circulated for review by the parties in June
of 2017. Both parties made objections to the presentence
report. The Government controverted three issues and Samp
controverted two, including an objection “to the
‘tax loss' amounts…[because] no methodology
of the computations is provided nor are the items of income,
deductions, expenses, exemptions, or adjustments provided so
no meaningful review can be accomplished. However, defendant
believes that 2009 includes at least one $30, 000 non-income
item as income and that 2010 includes at least one $10, 000
item which is also non-income.” Presentence
Investigation Report, A-6. There was no dispute that the 2010
and 2011 tax years were relevant conduct for purposes of
calculating the Sentencing Guidelines. See id. at
August 10, 2017, the Court held a telephonic status
conference to discuss the contested issues identified in the
presentence report and to determine if an evidentiary
sentencing hearing would be necessary to address any factual
questions including the tax loss. Following the discussion,
the Court directed the Government and Samp to submit
supplemental documentation addressing the issues, including
the relevant tax loss.
Government filed a fifteen-page brief entitled
“Government's Brief Regarding Samp's Criminal
Tax-Loss Calculations And Other Guidelines Issues.” ECF
No. 76. The Government's brief provided a detailed
summary of Samp's gross income, his taxable income, the
IRS's tax calculation, criminal penalties and interest
owing, and an explanation of the application of the guideline
ranges. The Government ultimately demonstrated that
“Samp's criminal tax-loss total falls within the
range of more than $250, 000 but not more than $550, 000,
giving Samp a base offense level of 18.” Id.
at PageID.872 (emphasis in original). The Government
concluded that Samp's total unpaid tax equaled $18, 200
for 2009, $82, 974 for 2010, and $76, 938 for 2011.
Id. at PageID.875. This equaled $179, 122 in total.
attorney filed a four page “Supplemental Response to
the Pre-Sentence Report.” ECF No. 75. He explained that
“for purposes of computing tax loss for purposes of
sentencing, the defendant was generally in agreement with the
business-driven deposit analysis.” Id. at
PageID.838. Otherwise he only objected to the inclusion of
penalties and interests in determining the tax loss for the
to the sentencing hearing, Samp represented that he had
submitted amended returns to the IRS for years 2009, 2010,
and 2011. However, as of the time of the hearing, receipt by
the IRS was unconfirmed.
MS. PARKER: Well, one thing I would like to add is that Mr.
Davis has indicated to the Court and to the Government that
2009 tax return was filed by the defendant. However, that has
not been received by the IRS as of 15 minutes ago.
THE COURT: Could you be any more current than 15 minutes?
MS. PARKER: I had to walk over here, Judge, so I couldn't
push it much closer. It might be a half hour, but seriously
we checked extremely -- THE COURT: Well, we appreciate the
MS. PARKER: -- just before we came over here.
ECF No. 81 at PageID.922-923.
sentencing hearing was conducted on October 26, 2017. ECF No.
78. Samp's offense level guideline was determined to be
18 based in part on a tax loss of $314, 354 which exceeded
$250, 000 but was less than $550, 000. His guidelines were
determined to be 21 months to 27 months. However, the
statutory maximum for the offense of conviction was 12
months. He was sentenced to 12 months incarceration, 12
months supervised release, and $178, 112 in restitution to
the United States. ECF No. 79. During the hearing, the Court
accepted the Government's unchallenged calculations but
excluded interest and penalties when determining Samp's
Restitution will be ordered in the amount of $179, 122. That
is the amount, total amount, of the unpaid tax composed of
$18, 200 in 2009, $82, 974 in 2010, and $76, 938 in 2011. And
those figures are…from the Government's
filing…where the amount of the tax obligation
ECF No. 81 at PageID.942.
did not ...